Developments of the EU
asylum law in the context
of Financial Crisis
14 September 2009, Torun
by dr. Laurynas Biekša
Mykolas Romeris University, Lithuania
Asylum: international legal obligations vs. economic/politic reasons
Lithuania/Poland: UNHCR concerned on Chechen refusals
Briefing Notes, 15 November 2002
This is a summary of what was said by UNHCR spokesperson Ron Redmond – to whom
quoted text may be attributed – at the press briefing, on 15 November 2002, at the Palais
des Nations in Geneva.
UNHCR is concerned about reports of Chechen asylum seekers being barred from entering
Lithuania and Poland following the recent Chechen terrorist attack in Moscow. Last week,
Lithuanian border guards refused entry to 26 Chechens and returned them to Belarus. At
least 17 of them were detained by Belarus authorities and subsequently put on a train bound
for Moscow. Their current whereabouts are unknown. In neighbouring Poland, charity
groups have reported dozens of cases of Chechens being turned away from the country's
eastern border since the October 23 terrorist attack on a Moscow theatre by Chechen
The UNHCR bureau in Warsaw and our office in Stockholm, which handles the Nordic and
the Baltic States, are seeking urgent clarification from Polish and Lithuanian authorities.
While we understand legitimate security concerns following the Moscow attack, we are
nevertheless concerned that a blanket refusal to allow in Chechen asylum seekers could put
many people at risk.
Poland has hosted a large number of asylum seekers from Chechnya. This year alone, 1,638
Russian Federation nationals – virtually all of them Chechens – had asked for asylum there.
Poland and Lithuania are both signatories of the 1951 Refugee Convention and candidates
for membership in the European Union. A policy of refusing to allow in Chechen asylum
seekers would constitute a violation of the two countries' national laws and international
Identification of economic reasons
Recognition rate - Lithuania Decreased recognition rate in 2009:
Granted asylum Rejected Better situation in countries of
origin or worse situation in
250 247 countries of asylum?
Usually economic reasons exist
150 in cases where:
107 costly outcome is possible (e.g.,
free legal aid, asylum for big
50 34 influxes, social integration
1st half 1st half 1st half restrictive interpretation is based
2007 2008 2009 on weak/contradictory legal
EU asylum law developments
1st generation asylum documents 2nd generation asylum documents
(till 2005): (Commission proposals in
Reception Conditions Directive
Qualification Directive Commission has already
Procedures Directive proposed amendments for
Reception Conditions Directive
will still propose amendments
for Qualification Directive and
1. Adopted by Council, acting
unanimously, after consultations 1. Adopted by Council acting by a
with EP qualified majority, in co-decision
2. Wide margin of discretion for procedure with EP
Member States and low level of 2. Higher degree of harmonisation
protection to be amended by 2nd and better standards of
generation documents protection 4
Amendments for Reception Conditions Directive and Financial Arguments-Employment 1
Employment in Reception Employment in Commission
Conditions Directive: proposal:
Member States shall determine a Member States shall ensure that
period of time, starting from the applicants have access to the
date on which an application for labour market no later than 6
asylum was lodged, during months following the date when
which an applicant shall not the application for international
have access to the labour market. protection was lodged.
If a decision at first instance has Member States shall decide the
not been taken within one year conditions for granting access to
of the presentation of an the labour market for the
application for asylum and this applicant, in accordance with
delay cannot be attributed to the their national legislation, without
applicant, Member States shall unduly restricting asylum
decide the conditions for seekers' access to the labour
granting access to the labour market.
market for the applicant.
Amendments for Reception Conditions Directive and Financial Arguments-Employment 2
Commission financial impact assessment:
the envisaged intervention regarding shortening time constraints for
access to the labour market could achieve savings for Member States. This
could be attributed to the fact that asylum seekers would be more self-
sufficient therefore additional welfare assistance would be avoided.
Moreover they would contribute to Member States' fiscal systems through
Such assessment would have been more persuasive during the period of
economic growth when unemployment was not a big problem. Council
seems to look for not so liberal provision or retain existing provision.
EP agrees with Commission proposal.
Amendments for Reception Conditions Directive and Financial Arguments-Subsistence 1
Material reception conditions and health Material reception conditions and health care
care in Reception Conditions Directive: in Commission Proposal:
In calculating the amount of assistance to be
Member States shall make provisions on granted to asylum seekers Member States shall
material reception conditions to ensure a ensure that the total value of material reception
standard of living adequate for the health conditions to be made available to asylum
of applicants and capable of ensuring seekers is equivalent to the amount of social
their subsistence. assistance granted to nationals requiring such
assistance. Any differences in this respect shall
be duly justified.
Member States shall provide necessary Member States shall provide necessary
medical or other assistance to applicants medical or other assistance to applicants who
who have special needs. have special needs, including appropriate
mental health care when needed, under the
same conditions as nationals.
Member States shall take into account Member States shall establish procedures in
the specific situation of vulnerable national legislation with a view to identifying,
persons such as minors, unaccompanied as soon as an application for international
minors, disabled people, elderly people, protection is lodged, whether the applicant has
pregnant women, single parents with special needs and indicating the nature of such
needs. Member States shall ensure support for
minor children and persons who have persons with special needs throughout the
been subjected to torture, rape or other asylum procedure and shall provide for
serious forms of psychological, physical appropriate monitoring of their situation.
or sexual violence.
Amendments for Reception Conditions Directive and Financial Arguments-Subsistence 2
Commission financial impact assessment:
financial efforts would be required in order to comply with the new Directive, with regard
– material reception conditions in view of aligning their policies with the benchmarks set out
in the new Directive;
– treatment of vulnerable persons, in view of establishing at national level mechanisms for
identifying special needs;
– ensuring access to health care for vulnerable persons under the same conditions applicable
Council seems to be against, because considered it difficult to calculate equivalence between
the different forms of reception conditions that exist and social assistance. Moreover, argued
that in some cases reception conditions are better than social assistance even though the total
value is lower than the amount of social assistance. In addition, questioned in principle the
case for providing equivalent treatment to asylum seekers and nationals. Furthermore,
opposed the provision because of the resulting costs. Also expected the provision to result in
discrimination of own nationals and long term residents. Asked whether a differentiation
amongst asylum seekers would need to be made, for older asylum seekers in order to receive
equivalent conditions as retired people. Considered health care provision difficult to apply in
the light of existing waiting lists for medical or other assistance. Found that the provision
gave too much importance too establishing a procedure for identifying special needs, etc.
EP does not object against the mechanisms for identifying special needs, but objects against
material conditions and health care of the same level as for nationals. 8
Amendments for Reception Conditions Directive and Financial Arguments-Detention 1
There are no safeguards against detention in Reception Conditions Directive;
safeguards against detention in Commission Proposal:
Member States shall not hold a person in detention for the sole reason that he/she is an
applicant for international protection. Member States shall ensure that rules dealing with
alternatives to detention, such as regular reporting to the authorities, the deposit of a financial
guarantee, or an obligation to stay at a designated place, are laid down in national legislation.
The continued detention shall be reviewed by a judicial authority at reasonable intervals of time
either on request by the asylum seeker concerned or ex officio.
Member States shall ensure access to legal assistance and/or representation in cases of detention
that shall be free of charge where the asylum seeker cannot afford the costs involved.
Member States shall not detain asylum seekers in prison accommodation. Detention shall only
be carried out in specialised detention facilities. Asylum seekers in detention shall be kept
separately from other third country nationals who have not lodged an application for
international protection unless it is necessary to ensure family unity and the applicant consents
Where minors are detained they shall have the possibility to engage in leisure activities,
including play and recreational activities appropriate to their age. Detained families shall be
provided with separate accommodation guaranteeing adequate privacy. Where female asylum
seekers are detained Member States shall ensure that they are accommodated separately from
male asylum seekers, unless these are family members and all concerned individuals consent
thereto. Where persons with special needs are detained Member States shall ensure regular
monitoring and adequate support.
Amendments for Reception Conditions Directive and Financial Arguments-Detention 2
Commission financial impact assessment:
ensuring that detention is applied only in exceptional cases would also result in
savings for Member States; due to the high number of staff employed in detention
centres in order to meet security requirements, detention policies could prove
more costly than accommodating asylum seekers in open reception centres.
Council seems to be strongly against such safeguards, because considered that
such safeguards can hardly be applied in practice. Indicated that asylum seekers
should not be accorded more rights as regards financial contributions to legal
assistance and/or representation than available to nationals. requested to make this
paragraph more flexible. In this context, proposed to add "Insofar as possible,
asylum seekers…". Argued that asylum seekers can sometimes be in prison for
reason of being a danger to themselves; specific accommodation in such cases
would entail high costs, etc.
EP mostly agrees with Commission proposal.
According to 2008-06-17 Asylum Policy
Plan the amendments to the Procedures
Directive (to be proposed in 2009) will
primarily aim at:
– setting up of a single, common asylum Single procedure for refugee status and
procedure leaving no space for the subsidiary protection is less expensive
proliferation of disparate procedural than two separate procedures and is
arrangements in Member States, thus already introduced by the majority of
providing for a comprehensive Member States. Therefore such
examination of protection needs under amendment is realistic.
both the Geneva Convention and the
EU's subsidiary protection regime.
– establishing obligatory procedural Free legal aid starting from the first-
safeguards as well as common notions instance procedure is discussed as one of
and devices, which will consolidate the the most important safeguards, but it is
asylum process and ensure equal access very expensive and Member States tend
to procedures throughout the Union. to limit its scope. Therefore such
amendment is not realistic.
According to 2008-06-17 Asylum Policy Plan
the amendments to the Qualification Directive
(to be proposed in 2009) will primarily aim at:
– amend the criteria for qualifying for
international protection under this Directive. Today Member States use flexible eligibility
To this effect, it may be necessary inter alia to conditions for subsidiary protection and
clarify further the eligibility conditions for other national types of protection status in
subsidiary protection, since the wording of the order to control their recognition rates.
current relevant provisions allows for Harmonisation of higher standards and
substantial divergences in the interpretation decreasing Member States margin of
and the application of the concept across discretion might significantly increase
Member States. A study will be launched on numbers of beneficiaries of international
the possible alignment of national types of protection. Therefore such expensive
protection status which do not currently fall amendment is not realistic.
under the EU's regime of international
– reconsider the level of rights and benefits to In many Member States beneficiaries of
be secured for beneficiaries of subsidiary subsidiary protection are entitled only to
protection, in order to enhance their access to core benefits while refugees receive social
social and economic entitlements which are assistance of the same level as nationals. As
crucial for their successful integration. more social rights for beneficiaries of
subsidiary protection would cost much, such
amendment is not realistic. 12
Starting from Amsterdam Treaty and Tampere
Conclusions, the EU asylum law is gradually
increasing degree of harmonisation and standards of
However, 2nd generation directives, which had very
high protection ambitions, most likely will face the
stronger resistance of Member States because of the
financial crisis and will not achieve the aims
foreseen before the financial crisis.